The State

Woman Awarded $1 Million Over Embryo Mix-Up

The doctor hid his error, her lawyer says. Couple want custody of her son.

SAN FRANCISCO — A Bay Area woman has been awarded $1 million in damages to settle a malpractice lawsuit against a fertility specialist who accidentally implanted her with the wrong embryos and then hid the mistake until the baby she delivered was 10 months old, according to her lawyer.

The embryos Susan Buchweitz received at a San Francisco clinic were actually intended for a married couple who had in vitro fertilization the same day using the husband's sperm and a different egg donor. The couple are seeking custody of the 3-year-old boy whom Buchweitz has raised since birth.

"The whole thing is creepy," said Nancy Hersh, Buchweitz's lawyer in her civil suit against the clinic, its lead doctor and its former embryologist. "As I worked on this case, I kept returning to the feeling that this area of medicine is unregulated and these in vitro doctors are like gods. They have complete power over these desperate people who want to become pregnant."

Court papers allege that both Steven L. Katz, the fertility doctor, and Imam El-Danasouri, the scientist who incubated the embryos and allegedly provided the wrong ones, knew of the mix-up within minutes of Buchweitz's in vitro procedure June 15, 2000, at the Fertility Associates of the Bay Area clinic.

But they concluded that it would be better to let nature take its course rather than provide their patient with the truth -- and the choice of whether to terminate the pregnancy, Hersh said.

The wife in the couple to whom the embryos belonged was implanted from the same set.

She gave birth to a child 10 days after Buchweitz did, making the couple's daughter and Buchweitz's son biological siblings.

Katz's attorney, Robert Slattery, said his client figured that, at age 47 and after two years of trying unsuccessfully to get pregnant, Buchweitz faced long odds against having her in vitro procedure work.

In addition, the lawyer said, Katz worried that if he told Buchweitz about the switched embryos, he would have to tell the married couple too, thereby creating the scenario for the custody skirmish that eventually ensued.

"The dilemma he had was that if he told somebody, he had to tell everybody, and somebody would be harmed as a result of it," Slattery said. "The important thing is that once the mistake was made, he was put in a difficult position. He made a judgment that people retroactively criticize, but the end result is that a normal, healthy child was born, and born to both couples."

Buchweitz learned about the switched embryos in December 2001 after the Medical Board of California, acting on an anonymous complaint from a former worker at Katz's clinic, contacted her and said there had been a mistake with her in vitro procedure.

In response to Buchweitz's panicked call, Katz and El-Danasouri went to her home and revealed what had happened.

They also notified the couple, who have remained unnamed in court papers and who filed their own fraud and negligence case against Katz and El-Danasouri.

The couple, meanwhile, have been seeking permanent custody of the son Buchweitz has raised as her own even after learning of the error.

A family court judge has granted Buchweitz temporary custody of the boy. The husband, as the biological father, has twice-weekly visitation rights.